Laboring in the obscurity he so richly deserves for over a decade now, your crusty correspondent sporadically offers his views on family, law, politics and money. Nothing herein should be taken too seriously: If you look closely, you can almost see the twinkle in Curmudgeon's eye. Or is that a cataract?

Wednesday, December 02, 2009

California man seeks to prohibit divorce?

According to the AP's Judy Lin, John Marcotte "wants to put a measure on the ballot next year to ban divorce in California." If that sounds like a comedy bit, it might be: Lin's article notes that Marcotte is a Sacramento web designer -- and also the proprietor of an "Internet comedy site," Badmouth.net. Marcotte admits to gathering only "dozens" of the 694,354 valid signatures he needs by the March 22 deadline for getting his proposition on the California ballot.

But Marcotte makes the news in California because his proposition tweaks the opponents of gay marriage. If voters want to protect traditional marriage, Marcotte reasons, they should have no trouble banning divorce. Lin quotes Marcotte as explaining, "Since California has decided to protect traditional marriage, I think it would be hypocritical of us not to sacrifice some of our own rights to protect traditional marriage even more."

Perhaps you are not surprised to learn that not all the leading opponents of the gay marriage ban have flocked to Marcotte's banner. Ron Prentice, the executive director of the California Family Council, told Lin that while his supporters would like to see fewer divorces, an outright ban would not be "practical."

You can even buy stuff from the site to support Marcotte's cause (and perhaps also his traditional wife and two children). This shirt is for sale in most sizes for $12 ($14 for men's XXL). The shirt "features a bride and groom chained at the wrist with the bonds of love." The site urges you to buy a shirt to "[s]how the heathens in your community that you support marital fidelity in the most extreme way possible."

Har, har, har, right?

The really funny thing, though, is that Marcotte has a good point.

I'm not going to start a similar petition drive in Illinois or anything, but it is a sad fact that roughly one of every two marriages ends in divorce. There are far too many kids growing up in what we used to call "broken homes." Calling these "blended families" doesn't necessarily make things easier for the kids.

As common as divorce is now (Marcotte and others quoted in Lin's article refer to it as a "right"), it was not always thus.

The Anglican Church may have been founded so Henry VIII could divorce Catherine of Aragon, but Anglican divines were just as opposed to divorce for non-royal persons as their despised Papist counterparts. In early America, divorce was available only as an act of the state legislature. I read a study of divorce practices in colonial and early American Virginia (where the Anglican church was long established) that suggested that the legislature would routinely refuse to permit divorces even in the most compelling circumstances. Eventually, over the course of several generations, divorce petitions were referred to chancery courts for fact finding and recommendations and, later still, these courts were granted the power to grant divorces on their own.

Still, as late as Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723 (1888), we find reference to divorce as a legislative prerogative. The case concerned a suit by the abandoned children of a man trying to enforce, after the absconding father's death, rights to a portion of property he homesteaded in the Washington Territory after he abandoned the family. The Supreme Court found that the children had no claim because their late mother had no claim, their father having divorced their mother pursuant to an act of the Oregon territorial legislature before the homestead rights were fully vested. The fact that Mr. Maynard failed to even gave his wife (left behind in Ohio, with two children and without support) notice of his intent to secure a divorce was not enough to invalidate the divorce. The Supreme Court agreed that the legislature might not have granted the divorce if it had known these facts, but it had the power to act without this knowledge... and it acted.

Lay in a supply of popcorn and turn on Turner Classic Movies this weekend. I doubt you'll be on the couch too long before you hear a reference to someone 'going to Reno.' Even as attitudes toward divorce softened in the 20th Century, divorce was often unavailable, or practically so, in many American jurisdictions, particularly if one party objected. Nevada made money by taking advantage of this, coupling a liberal divorce law with a manageable residency period. The proximity of Nevada to California made Reno references in the movies all that much more numerous.

It's really only recently that "no-fault" divorces have become available generally. These too often follow "no-thought" marriages.

There are circumstances where divorce is absolutely necessary for the safety and sanity of an abused spouse or for the physical or financial protection of children -- but, even if Mr. Marcotte doesn't mean it, he has a point: One can't be simultaneously a staunch supporter of "traditional marriage" and easy, no-fault divorce. I don't think my wife would like the T-shirt, though.